323 P.3d 491
Or. Ct. App.2014Background
- Victim M (born 1996) was fostered and later adopted by defendant; alleged repeated oral-sex abuse over years while living with defendant.
- Grand jury indicted defendant (July 2010) on multiple counts including two counts of first-degree sodomy; those two counts originally alleged offenses "on or about a date between 2005 and 2006."
- Prosecutor moved on the morning of trial to strike the words "a date between 2005 and" so counts would allege "on or about 2006." Trial court granted the amendment; defendant did not request a continuance.
- Pretrial, defendant moved to compel discovery of recordings and call logs of inmate calls made from DOC facilities that DOC had recorded; trial court denied the motion (DOC calls); calls from county jail were provided.
- At trial, M testified the acts occurred repeatedly while living with defendant and specifically on the day of a photograph (around 2000–2001); jury convicted on both sodomy counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether amendment of the indictment was improper because it changed the charged conduct beyond grand jury's intent | Amendment merely removed surplus date language; indictment and evidence covered conduct throughout the limitation period | Amendment substituted a materially different timeframe (photo ≈2000–2001) than grand jury’s alleged 2005–2006 period; state failed to show grand jury intended to indict for earlier conduct | Unpreserved: defendant raised different objections at trial (preparation prejudice); appellate "grand-jury intent" theory not preserved, so court did not address merits |
| Whether trial court erred by allowing amendment without continuance or showing of grand jury intent | No prejudice; discovery already covered entire period; time not an essential element of sodomy | Amendment prejudiced defense preparation; date amendment invalid if not "close in time" to original date | Not reached on appeal due to preservation; trial court had found time not an essential element and defendant did not move for continuance |
| Whether prosecutor violated discovery obligations by failing to produce DOC-recorded inmate phone calls and logs | Prosecutor not in possession or control of DOC recordings; no statute required DOC to provide records to prosecutor so discovery obligation not triggered | DOC recordings are within prosecutor’s control (like CSD in Warren); DOC is an "arm of the prosecution" when recordings may be used in prosecutions, so must be disclosed | Court held DOC recordings were not shown to be within prosecutor’s possession or control; Warren distinguished because DOC lacks statutory duty to investigate/disclose; motion to compel properly denied |
Key Cases Cited
- State v. Warren, 304 Or 428 (1987) (public agency files are within prosecutor control and discoverable when agency is statutorily obligated to investigate/share with law enforcement)
- State v. Williams, 237 Or App 377 (2010) (indictment functions include jurisdictional role — ensuring charges reflect grand jury findings)
- Peiffer v. Hoyt, 339 Or 649 (2005) (preservation requirement ensures opposing party can respond and courts can correct errors)
- State v. Wyatt, 331 Or 335 (2000) (party must clearly inform trial court of specific objection to preserve issue for appeal)
- State ex rel Glode v. Branford, 149 Or App 562 (1997) (prosecutor may lack control over records held by police in other jurisdictions)
- State v. Johns, 44 Or App 421 (1980) (Children’s Services Division performs investigative functions analogous to police in child abuse cases)